For most people, the idea of “Green Energy” likely evokes images of solar panels and wind turbines. However, the movement toward renewable energy, and a more reliable and efficient power grid, involves many other forms of technology that may yet be unfamiliar to the average person. But as the push to expand Green Energy production grows, so too will the prevalence of the technologies needed to support the industry.

On Long Island, communities from Hempstead to Southold are witnessing the introduction of a previously unfamiliar form of Green-adjacent technology in the form of Battery Energy Storage Systems, or “BESS”. I refer to BESS facilities as “Green-adjacent” because, unlike wind and solar farms, they do not produce electricity of their own. Instead, they store it. So far, local reception of these uses is mixed.

What Are BESS?

BESS facilities generally consist of rows of rechargeable batteries housed in self-contained, interconnected storage units. BESS facilities typically operate by drawing surplus energy from the local power grid during periods of low usage and storing it for later distribution back into the grid during peak demand. However, they can also be used as direct storage for electricity produced by renewable energy production facilities, like wind and solar farms. In either case, BESS stabilize the local power grid by ensuring reliability during periods when the grid might otherwise experience a partial or total deficit in voltage, commonly known as “brownouts” and “blackouts”. Thus, proponents of BESS offer that these facilities can reinforce the local power grid not only on a daily or routine basis, but also during emergencies when demand is especially high or when electrical transmission from outside the local grid is severed.

BESS and Zoning

From a land use perspective, BESS facilities are a low-impact uses. Once a facility is constructed and operational, it requires no regular staffing, only routine maintenance. This results in virtually no traffic, and almost no need for onsite parking. The facilities can also be monitored remotely, which further reduces traffic, and onsite staffing and parking. Site lighting at BESS facilities is also largely unnecessary, except for security purposes. The absence of employees also means there is virtually no water consumption at BESS facilities, and commensurately, little to no sewage.

The only potentially significant planning concern associated with BESS facilities is noise generated by cooling fans. However, noise is not always a problem depending on the size and configuration of a project. In instances where noise may be an issue, the industry has implemented methods of noise mitigation, including the use of sound barriers and landscaping.

Naturally, not everyone is sold on BESS. Opponents of these facilities have raised concerns over the presence of highly flammable substances, such as from lithium-ion batteries, and possible air and groundwater contamination. Historically, concerns about such threats were resolved by zoning certain uses out of residential areas and restricting them to high-intensity industrial districts. However, that is not always feasible with BESS.

BESS facilities must connect to the local power grid through a substation with adequate capacity to accommodate the transmission between the BESS facility and the grid. Additionally, the greater the distance between a BESS facility and the substation, the less efficient the transmission will be. As a result, designing a viable BESS facility may require that a BESS facility be located in or near a residential district in some cases. This is certain to be the situation in more urbanized areas of Long Island, like western Nassau County, where there is high density of uses and districts in close proximity to one another. Thus, planning for the future of BESS facilities on Long Island will not be without its challenges.

Status of Local Regulations

To date, the Towns of Brookhaven, Huntington, Islip and Southampton are the only four of Long Island’s 13 towns to adopt zoning regulations for BESS facilities. Their respective regulations are summarized below. The Town of Riverhead Town Board very recently discussed a set of draft BESS regulations based on the model law published by the New York State Energy Research and Development Authority (NYSERDA) (available here: https://www.lilanduseandzoning.com/wp-content/uploads/sites/128/2023/01/NYSERDA-model-1.pdf). However, the future of that legislation is uncertain. Other towns, like the Town of Southold, are discussing possible moratoria on BESS facilities out of concern for potential environmental impacts and public safety.

  1. Town of Brookhaven

The Town of Brookhaven—Long Island’s largest town geographically, and second largest by population–enacted its BESS zoning regulations in February 2020. They are set forth in Sections 85-814 through 85-817 of the Town’s Zoning Code, which may be accessed here: https://www.lilanduseandzoning.com/wp-content/uploads/sites/128/2023/01/Brookhaven-4.pdf

Like the NYSERDA model, Brookhaven’s regulations separate BESS facilities into two tiers based on system capacity. Tier I projects are BESS facilities having capacity up to 599 kilowatt hours (kWh). They are permitted in the Town’s J-2 and J-5 Business Districts by special permit from the Brookhaven Planning Board, and are permitted by right in the Town’s L-1, L-2, and L-4 Industrial Districts. Tier II projects are BESS facilities having capacity of 600 kWh or greater. Unlike Tier I projects, Tier II projects are restricted to the L-1, L-2, and L-4 Industrial Districts.

Other notable requirements in Brookhaven’s BESS regulations include the minimum lot size for all BESS projects (40,000 sq. ft.); moderate to substantial setback requirements; and various other design standards affecting clearing, site lighting, and noise mitigation. The code further requires the approval of a decommissioning plan and the posting of decommissioning bond.

2. Town of Huntington

The Town of Huntington enacted its BESS zoning regulations in October, 2020. They are set forth in Section 198-68.3 of the Town’s Zoning Code, which may be accessed here: https://www.lilanduseandzoning.com/wp-content/uploads/sites/128/2023/01/Huntington-1.pdf.

Unlike Brookhaven, the Town of Huntington does not separate BESS projects into tiers. Instead, facilities that are two (2) acres or larger and within 200 ft. of a residential district require a Planning Board special permit. The code is otherwise fairly generous toward BESS projects, allowing them as principal permitted uses in all Light Industrial Districts (I-1 through I-4) in addition to the General Industrial (I-5) and Generating Station (I-6) Districts. BESS projects are also permitted as accessory uses in these districts, and by special permit in the General Business (C-6) District, if they occupy 2% or less of the project site and serve another building or facility on the same premises.

Like Brookhaven, the Town of Huntington’s BESS regulations include several design requirements affecting setbacks, height, site lighting, and noise mitigation. The approval of a decommissioning plan is also required.

3. Town of Islip

The Town of Islip enacted its BESS zoning regulations in July 2022. They are set forth in Section 68-456 of the Town’s Zoning Code, which may be accessed here: https://www.lilanduseandzoning.com/wp-content/uploads/sites/128/2023/01/Islip-1.pdf

The Town of Islip operates on a three-tier classification system, with Tier III being the largest (601 kWh or greater) followed by Tier II (81-600 kWh), and then Tier I (80 kwH or smaller). Tier I BESS are permitted in all zoning districts in the Town. Tier II BESS are permitted in the Town’s B-1, B-2, and B-3 Business District in addition to its Industrial Districts (excluding Industrial Business [I-B]). Tier III BESS are restricted to the Industrial 1 and Industrial 2 Districts only.

In addition to imposing design standards and decommissioning requirements similar to Brookhaven and Huntington, the Town of Islip code includes specific provisions regarding commissioning plans, project operations, and safety during a project’s lifetime.

4. Town of Southampton

The Town of Southampton enacted its BESS zoning regulations in January 2021. They are set forth in Section 330-162.21 of the Town’s Zoning Code, which may be accessed here: https://www.lilanduseandzoning.com/wp-content/uploads/sites/128/2023/01/Southampton-1.pdf

In Southampton (outside the incorporated villages), BESS facilities are permitted in all zoning districts, including residential districts, subject to varying standards depending on the district in question. Additionally, the Town sets aside specific “avoidance areas” having special environmental, historical, cultural, or recreational value where BESS facilities are prohibited.

Like the other towns discussed, Southampton imposes specific standards governing setbacks, site lighting, and noise mitigation, among other things. It also requires a decommissioning plan, and payment into a “decommissioning fund”.

Note: The attached regulations are presented as published on the General Codes website on the date of this post. Independent review of the current regulations of the governing town should be performed in connection with any future project through the General Codes website (https://www.generalcode.com/library/#) or at the town’s offices.

As part of her 2023 State of State address, Governor Kathy Hochul announced a statewide strategy to address New York’s housing crisis by building 800,000 new homes over the next decade. The plan, dubbed as the “New York Housing Compact,” is a comprehensive, multi-pronged strategy that mandates local participation and grants incentives to achieve housing growth across the State.  It allows municipalities the flexibility to achieve mandated housing goals, but includes the possibility of State intervention for those that fall short.

Housing Growth Targets

The Housing Compact will require all cities, towns, and villages to achieve specific targets for housing growth on a three-year cycle. For New York City and other downstate municipalities that are served by the Metropolitan Transportation Authority (“MTA”), the housing growth target is three percent over three years. For municipalities in upstate counties where the housing need is less acute, the new homes target is one percent over three years.  Municipalities will have broad discretion to decide how best to increase housing supply in order to meet their targets.

To encourage the inclusion of higher-density and affordable housing as part of the new growth, approved multi-family and affordable units will be assigned extra weight in calculating a municipality’s progress toward its goals.  For example, municipalities will receive credit for two units for every new affordable housing unit constructed.

Municipalities that do not meet their target, but are implementing good faith measures or “Preferred Actions” designed to spur development to achieve the growth targets, will be granted an additional three-year grace period to meet their new housing goals.   

Funds for Planning and Infrastructure Improvements

The Housing Compact will make available a $250 million Infrastructure Fund and $20 million Planning Fund to encourage the construction of new housing throughout the State. This funding can be used by municipalities to undertake new zoning measures or develop other strategies to help them hit their growth targets.  Municipalities can also submit requests for funds to pay for critical infrastructure improvements, such as for water and sewer extensions and new roads that would support the addition of new housing.  Municipalities may obtain support and guidance from a new Housing Planning Office within New York State Homes and Community Renewal created under the plan.

Mandate Transit-Oriented Development

The Compact requires municipalities with MTA rail and subway stations to rezone the area within a half-mile radius of the station for residential use at a minimum density of 25 units per acre.  According to an announcement on the State’s website, the Governor believes that expanding housing opportunities in transit-oriented communities will provide more families with improved access to jobs and thriving sustainable communities.

Incentives to Build and Rehabilitate Housing

The Housing Compact is accompanied by a series of new proposals to incentivize the construction of new housing and the rehabilitation of existing housing. This includes new property tax exemptions to encourage housing development near train stations and incentivize affordable housing in commercial buildings that are converted to residential use in New York City.  Property tax exemptions will also be offered to support homeowners who build Accessory Dwelling Units and property owners who undertake certain renovations in New York City.

New York State Homes and Community Renewal will be directed to make $5 million in State Low Income Housing Tax Credits available to support the development of mixed-income housing outside of New York City.

To stimulate production of new rental housing in New York City, the Governor pledged to work with the State Legislature to renew the state’s former “421-a” tax abatement program, which encouraged developers to set aside units in new buildings for affordable housing.

Fast-Track Housing Approval as a Remedy

Housing projects with affordable housing that are denied a permit in municipalities that fall short of their growth targets and fail to take good faith Preferred Actions to spur development, may be eligible for fast-track housing approval.  This fast-track process will require an appeal to a new State Housing Approval Board or to the courts. Appealed projects will be approved unless a municipality can demonstrate a valid health or safety reason for denying the application. 

Expedited Environmental Review

In recognition that the State’s environmental review process can be used by municipalities and project opponents to stall or stop a development project, the Housing Compact proposes an expedited environmental review process for certain housing projects.  Notwithstanding expedited environmental review, the process will include safeguards designed to ensure that these developments will not create environmental harm.

Mixed Reception from Local Officials

Here on Long Island, the Governor’s ambitious proposal to address the housing crisis received mixed reviews from local officials.  According to a recent article published in Newsday, Suffolk County Executive Steve Bellone said that he supports the plan, because it “will incentivize local municipalities to work closely with the state to address an issue that is critical to Long Island’s economic future.”  Huntington Supervisor Ed Smyth was critical of the proposal and said that he “expects the Town of Huntington to exceed the governor’s goals, but it will be done without the governor’s heavy-handed involvement.”

A more measured approach was taken by Brookhaven Supervisor Ed Romaine, who acknowledged the need for more housing, but is waiting for more details from the governor’s office.  However, he warned that the plan will not work if the state tries to control local zoning.  Smithtown Supervisor Edward Wehrheim reacted similarly, and said that it’s “problematic” for “a higher-level government to override local zoning.”  These same concerns are likely to be echoed by local officials across the State who view the Governor’s proposal as trampling on home rule authority.

In 2022, Governor Hochul tried to address the State’s housing crisis by requiring municipalities to permit accessory dwelling units on lots zoned for single-family homes.  That proposal quickly lost steam and was eventually dropped following criticism by local officials of the State’s attempt to control local zoning decisions.  The Governor’s new proposal presents another political minefield – one that she is apparently willing to navigate in order to address the State’s housing problem.  The plan’s success will depend on the level of collaboration between the State and local governments and the willingness of all parties to finding a solution.  If battle lines are drawn, this proposal is doomed to the same fate.

Additional details of the New York Housing Compact are expected to be released in the coming months, as the State Legislature begins its 2023 legislative session.

Recently, the Suffolk County Supreme Court affirmed the Southampton Village Zoning Board of Appeals (ZBA) denial of a special permit to subdivide the subject property into two residential lots in the Village’s Office District. In 99 Sanford Place LLC, v Zoning Board of Appeals of the Incorporated Village of Southampton, (Sup. Ct. Suffolk County. Sept. 20, 2022) Justice Linda Kevins dismissed an Article 78 petition that asked the court to annul the ZBA’s 2021 denial of the special permit despite a remarkably similar application that was granted across the street for the same kind of residential use in the Village’s Office District.

As previously discussed in this blog, classification of a use as allowable by special permit is “tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood.” See, e.g., 7-Eleven v. Inc. Vill. of Mineola, 127 A.D.3d 1209 [2d Dep’t 2015] (affirming grant of Article 78 petition where the record contained “no evidence that the petitioners’ proposed use of the premises would have a greater impact . . . than any as-of-right use”).

Faced with its own prior precedent in favor of granting the requested special use permit, the ZBA nevertheless denied the application, concluding that 99 Sanford’s proposed two residential uses would more adversely impact the neighborhood than office use. The Village’s ZBA’s denial of 99 Sanford Place LLC eight-page denial of the special permit was not supported by any factual findings or evidence to support this conclusion. Instead, the ZBA merely regurgitated the statutory criteria for granting a special permit and found in merely two paragraphs that “it has not been established to the [ZBA] that the particular criteria set forth within the Village Code have been met by the presentation of the applicant.” The ZBA did not distinguish its prior precent for granting similar relief across the street, which was made part of the record by petitioner’s counsel.

Among the various arguments made by the petitioner in its Article 78, the strongest argument was that “a decision of an administrative agency which neither adheres to its own precedent nor indicates a reason for reaching a different result on essentially the same facts, is arbitrary and capricious.” See, Knight v. Amelkin 68 NY2d 975, 977 [1986]. The petitioner went on to argue that the ZBA failed to follow its prior determinations that granted similar application in the village with little to no factual findings or evidence

But that is not how the Court saw it, and despite expressly finding that 99 Sanford’s submissions in this action “are sufficient to meet [its] burden” to “prove the allegations in [its] petition,” the court dismissed the Petition.

Against all odds and with great deference to the municipality, the Court found no merit to petitioner’s argument that the ZBA failed to follow its own prior precedent and summarily affirmed the ZBA’s denial of the special use permit application with no supporting evidence in the denial. Remarkably, the court went on to find that although the ZBA is bound to follow its own precedent, it determined that the prior grant for the same relief was sufficiently distinguishable from the present case despite there being nothing in the decision of the ZBA to support that finding.

On December 30, 2022, the petitioner filed a motion for leave to reargue. Stay tuned for more updates.

In November 2015, the northern long-eared bat was listed as a threatened species due to the devastating impact of white-nose syndrome.  White-nose syndrome is a disease caused by a fungus that affects hibernating bats and is decimating the bat population.  As a result of continued population decline, the U.S. Fish and Wildlife Service (“USFWS”) announced a final rule to reclassify the northern long-eared bat as endangered under the Endangered Species Act (“ESA”).  The rule will take effect January 30, 2023.

According to the USFWS press release, “the northern long-eared bat is found in 37 states in the eastern and north central United States, the District of Columbia, and all Canadian provinces from the Atlantic Coast west to the southern Northwest Territories and eastern British Columbia.  These bats mostly spend the winter hibernating in caves and abandoned mines.  During summer, northern long-eared bats roost alone or in small colonies underneath bark or in cavities or crevices of both live and dead trees.  They emerge at dusk to fly primarily through the understory of forested areas, feeding on insects.”  The press release indicates that bats contribute at least $3 billion annually to the US agricultural economy through pest control and pollination.

The reclassification of the northern long-eared bat as an endangered species mandates certain blanket protections under section 9 of the ESA and eliminates the application of species-specific, tailored protections afforded by the 4(d) rule.  The practical impact of the endangered species designation for development projects is that projects with the potential to impact northern long-eared bat habitat must undergo a stringent ESA permitting process, and develop and implement a Habitat Conservation Plan (“HCP”).

As part of the permitting process, the USFWS prepares a biological opinion under section 7 of the ESA and conducts National Historical Preservation Act and NEPA analysis; it reviews the HCP for adequacy, prepares a findings document and opens the public comment periods for NEPA and HCP documentation.

Because the population decline is disease-related and not due to habitat loss, certain development factors, such as a projects location (more than 5 miles from a known hibernation site) and/or projects with clearing and tree removal performed during the bat’s hibernation period (roughly November through March), may be permitted.  These same measures are referenced in USFWS guidance and noted as likely protective according to the Federal Register; however, the USFWS cautions that such factors, among others, are guidance-based, and not compliance-based exceptions to the ESA permitting process.

Given the range of the northern long-eared bat and its presence in New York and on Long Island, developers should factor potential impacts where tree removal is required as part of a development plan.

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After more than half a century, the Village of Sea Cliff is in the process of adopting a new Comprehensive Plan to update the 1970 Village Master Plan.  New York State recommends that municipalities update their Comprehensive Plans on a regular basis, to identify changes and trends that the community is undergoing, as well as develop a shared vision and implementation path for its future.  Hence, a new Sea Cliff Comprehensive Plan is long overdue.

The Sea Cliff Board of Trustees (“Village Board”) initiated the process back in 2019 when it created the Long-Range Steering Committee and tasked it with surveying community members to determine what changes or improvements they would like to see in the Village.  After a two-year delay due to the coronavirus pandemic, the Village Board issued a Request for Qualifications in January 2022. A Request for Proposals followed in March 2022, seeking qualified consulting firms who could assist the Village in developing a new comprehensive plan.  The Village Board ultimately selected BFJ Planning, a New York City-based consulting firm with expertise in planning, urban design and environmental analysis to assist it in developing a new long-range plan.

BFJ Planning is currently in the early stages of the process and recently began its community outreach to establish the parameters of the long-range plan.  At a recent public workshop meeting held on November 17, 2022, BFJ Planning made a presentation that provided an overview of the project and existing conditions, identified preliminary ideas and goals, and opportunities for public engagement, and explained the next steps in the process.  Sea Cliff Mayor Elena Villafane opened the meeting by urging residents to participate in the process by sharing their views as to what they think Sea Cliff should look like over the next 50 years.  The public comments received during the course of two-hour long workshop highlighted some of the competing interests and planning challenges that lie ahead, such as balancing the preservation of Sea Cliff’s existing character against the need for new housing that is affordable for young people and seniors.

Frank Fish, a principal partner of BFJ Planning, suggested to residents that the Village should consider rezoning the portion of the North Shore Country Club (“NSCC”) that is located within the Village to require cluster development and the preservation of open space.  Mr. Fish told residents that this portion of the NSCC represents the largest piece of open space in the Village, and is currently zoned Residence D, which allows for single-family homes on lots that are 20,000 square feet or more in size.  He cautioned that without such zoning changes, the parcel could be developed with single-family homes as of right.  In his view, a zoning amendment requiring cluster development would be a proactive measure that would require a future owner with development plans for the golf course to conserve open space.

The new Comprehensive Plan continues to be a work in progress.  According to information contained on the Village’s website, the goal is for the Village Board to adopt a new Comprehensive Plan in August 2023.  In the meantime, BFJ Planning, the Long-Range Steering Committee and the Village Board still have a lot of work to do to complete and adopt the plan.  BFJ expects to hold another public workshop in March 2023 , and the Village Board must hold a public hearing on the draft plan and conduct an environmental review under the State Environmental Quality Review Act (“SEQRA”) before it can adopt the new Comprehensive Plan.

Typically, zoning variances “run with the land”, and absent a specific time limitation, they continue until properly revoked. See, St. Onge v. Donovan, 71 NY2d 507, [1988]. As a result, variances cannot be made to apply only to the current owner. But under the Fair Housing Act (FHA), reasonable accommodations can be made that are essentially personal variances that expire upon the sale of the land and can be subject to “restorative provisions.”

Additionally, the Fair Housing Amendments Act of 1988 (FHAA) makes it unlawful to discriminate against “any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services of facilities in connection with such dwelling” on the basis of that person’s handicap. 42 U.S.C.A §3604(f)(2).

Discrimination is defined to include refusing to make reasonable accommodations in “rules, policies, practices or services” when necessary to afford a person with a handicap “equal opportunity to use and enjoy a dwelling.” 42 U.S.C.A. §3604(f)(3)(B). See, See, Trovato v. City of Manchester, 992 F. Supp 493 [D. N.H. 1997].

Under the FHAA, an accommodation is “necessary” to afford “equal opportunity” when plaintiffs have shown that but for the accommodation, they “will be denied an equal opportunity to enjoy the housing of their choice, and the “reasonable accommodations” requirement of the FHAA applies to zoning ordinances. Id.

For example, in the case of Austin v. Town of Farmington 826 F.3d 622 [2d Cir. 2016], the Austins obtained zoning variances to build a pool, fence and deck on their property to accommodate their disabled son. Located in Ontario County, New York, the Town Board of Farmington granted a “temporary accommodation” to allow for the proposed improvements. However, the resolution contained a restoration requirement that the Austins must completely remove, at their expense, the fence and pool within 21 days of the sale of the home or when their disabled child no longer lived at the property. The Austins constructed the pool and fence.

Two years later, the Austins filed suit, challenging the restoration provision. The Austins claimed (i) that the town’s denial of a reasonable modification was discriminatory in violation of the FHAA and (ii) the restoration provision was a retaliation by the Town for asserting their rights under FHAA . The district court dismissed the Austins’ complaint because the Austins failed to provide any evidence of discriminatory intent. 

In affirming in part and vacating in part the dismissal, the Second Circuit held that whether the resolution was reasonable was a complex balancing of factors. The court explained that the requested accommodation was reasonable as was requiring the removal of the pool improvements after the disabled child left the property. The court found that the Town clearly did not want the variances to “run with the land”- to be taken advantage of by later occupants without a disability. The court also considered the likelihood that a permanent variance would cause other landowners to seek similar variances without a disability.

As a result, the court found that there was no evidence of a retaliatory motive, and the restorative provision did not directly deprive the disabled child of his rights under the FHAA. But the court found that a question of fact remained regarding the “reasonableness” of the restorative provision and could not be resolved on the Town’s motion to dismiss.

Take away: local planning and zoning boards as well as land use practitioners must be knowledgeable of local zoning codes and our federal disability laws and account for them in their applications and decisions.

Long Island has seen a tremendous influx of investment in new industrial projects over the last two years, particularly in the self-storage, warehousing and distribution sectors. These projects promise to bring much needed, state-of-the-art facilities to Long Island’s towns, which industry leaders describe as a long-underserved market. Of equal importance to Long Island’s future is the tax revenue and jobs these projects will generate. However, as these new facilities come online, some local officials are starting to assess the downside of industrial growth and are looking to hit the pause button. On the Island’s east end, an initiative is currently underway that may result in a moratorium on industrial development in Calverton, the Town of Riverhead’s industrial hub.

            Calverton sits at the tail end of the Long Island Expressway. It is home to the former 2,900-acre military base turned industrial park known as the “Enterprise Park at Calverton” (or EPCAL) and several other industrial zoning districts that comprise the Town’s industrial center. In recent years, Calverton’s proximity to the Long Island Expressway, and other major roadways, and its stock of available undeveloped land have attracted strong interest from local and national industrial developers alike. Applications for several projects have already been filed with the Town that, if approved, would bring nearly 1.3 million square feet of new industrial space to the area. This does not include the 600-acre redevelopment of EPCAL that is awaiting the culmination of the Town’s sale of the property to Calverton Aviation & Technology. These figures have some Town residents worried.

            Earlier this month, the Town’s Planning Board commissioned a draft law calling for a moratorium on industrial development in Calverton. The draft specifically names several pending applications, but also calls for a complete freeze on the processing, review and approval of all new industrial projects within the hamlet. A copy of the draft law can be accessed here: https://www.lilanduseandzoning.com/wp-content/uploads/sites/128/2022/10/Calverton-Industrial-Moratorium-DRAFT-Local-Law-10.26.2022.pdf.

            The proponents of the moratorium are concerned that so much industrial development in Calverton will irreversibly change the area’s rural character and overburden the existing road network. Concerns over groundwater quality, environmental justice, and other environmental factors are also at the forefront of the discussion.

            However, as this matter moves forward, several key aspects of the proposed moratorium are still unknown. The most recent draft of the law does not say how long the freeze on applications for industrial projects would last. It also does not identify any exceptions to the moratorium or any procedure for seeking relief from the moratorium based on hardship. As drafted, the moratorium would even apply to development projects within the Calverton Camelot industrial subdivision at EPCAL, which the Town approved more than a decade ago and the realization of redevelopment of the former Grumman site that has been planned since 1998.

            Undoubtedly, the Town Board’s response to the moratorium question will have a profound impact on parties on both sides of this debate. The influence of Riverhead’s decision on this issue could also spill over into other Long Island towns that are experiencing a similar renewed interest in industrial development.

            We will be watching and reporting on this matter with great interest as it unfolds.  If the moratorium is adopted, the forecast for industrial development in Riverhead could be chilly.

For the New York State Department of Environmental Conservation (“NYSDEC” or “Department”), discretion has been the better part of valor when considering enforcement of certain provisions of the Revised Part 360 Solid Waste Regulation Series (“Regulations”). 

In September 2017, NYSDEC announced a comprehensive overhaul of the then existing regulations governing Solid Waste Management Facilities.  The Regulations became effective on November 4, 2017, and were the first changes to solid waste management regulation in New York in almost 25 years. The Regulations made far-reaching changes, including extending regulatory coverage to previously exempt or unregulated facilities, and imposing strict rules and regulations for beneficial use determinations, construction and demolition debris, transportation of waste, and sampling for fill and other material intended for reuse, among other requirements.

According to NYSDEC the revised Regulations were derived from:

Experience in regulating those facilities has demonstrated that many areas of the regulations would benefit from revision, clarification, or modification to allow for new, technically appropriate alternatives to the design and operation criteria for solid waste management facilities found in the existing regulations, and to streamline the regulatory process.

Application of the Regulations triggered a number of practical, compliance-related issues for the regulated community. 

To date, the Department has still not fully implemented the Regulations.  NYSDEC has taken a measured approach to enforcement of certain unanticipated effects in application of the Regulations.  The Department continues to provide time for the regulated community to adjust and bring their facilities into compliance and has issued multiple enforcement discretion letters outlining certain provisions and/or circumstances in which the Department acknowledges compliance hurdles and the benefits of partial compliance in contrast to penalizing non-compliance.

The most recent enforcement discretion letters were released on March 16, 2022 and April 27, 2022 respectively, and confirm that NYSDEC will utilize enforcement discretion until May 3, 2023 or until an amendment to the current rule is promulgated for certain waste categories and processes contained in 6 NYCRR Part 360, Part 361, Part 362, Part 364 and Part 365.  While the letters signal compromise and an effort to instill a balance of enforcement for the benefit of the environment, the letters do warn that except for the specific provisions identified for discretion, all other provisions of the Part 360 Series remain in effect and will be enforced.

What follows is a brief summary of the specific circumstances and provisions that the Department has authorized enforcement discretion and or clarified the compliance obligation in the respective discretion letters.

The March 16, 2022 discretion letter identifies requirements across multiple solid waste management activities and provides discretion:

  • To address backlogs of material and larger stockpiles of recyclables at Recyclable Handling and Recovery Facilities (“RHRFs”), DEC will, upon request, waive the 15 percent residue threshold in 6 NYCRR §361-1.3(a)(1) and (2) for registered RHRFs on a case-by-case basis.  In addition, with DEC approval, enforcement discretion shall be applied to storage of unprocessed or processed non-putrescible recyclables at locations owned or under control of an owner or operator of a solid waste management facility.
  • To encourage metal recycling, DEC will utilize enforcement discretion to exclude metal extracted from a municipal waste combustion facility (“MWC”) after combustion, from the calculation of the MWC’s throughput capacity.
  • To address a discrepancy between the regulatory requirements imposed on 10-day permit exempt transfer facilities and hazardous and solid waste transporters in which certain permitting restrictions on permit exempt transfer facilities (6 NYCRR Part 360) were more stringent than those for hazardous waste transporters (6 NYCRR Part 373).  NYSDEC is using enforcement discretion to waive the requirements of 6 NYCRR §360.14 provided the management of solid wastes by the transporters is consistent with 6 NYCRR §372.3(a)(6) and §372.3(a)(7)(iii).
  • To resolve the inadvertent removal of an exemption that imposed two conflicting sets of requirements on transporters of used oil when storing solid wastes at 10-day transfer facilities. NYSDEC will use enforcement discretion by waiving the requirement of 6 NYCRR §360.14 provided the transporter complies with the applicable provisions of 6 NYCRR §374-2.5 and §374-2.10.
  • To address concerns raised by municipalities that permitting and landfill liner requirements imposed on registered land clearing debris landfills would cause their Municipal Solid Waste (“MSW”) landfills to be inundated with land clearing debris, significantly reducing available air space.  The Department is using enforcement discretion to allow such previously registered facilities to accept tree debris, concrete, asphalt pavement, brick, rock and soil that meets the definition of General Fill or the requirements of 6 NYCRR §360.12(c)(1)(ii).
  • To respond to concerns raised by the agricultural community, NYSDEC is using enforcement discretion related to 6 NYCRR Subpart 361-6 allowing for the use of waste tires to secure tarps and other cover in accordance with the pre-determined beneficial use found at 6 NYCRR §360.12(c)(2)(iv) or BUD 1137-0-00 dated December 4, 2014 which permits the use of waste tires to anchor plastic film or other cover material for corn, hay or other agricultural feeds if certain conditions are met.
  • To address concerns raised by small generators of regulated medical waste (“RMW”) (dental offices, etc.).  NYSDEC will exercise enforcement discretion with respect to 6 NYCRR § 365-1.2(b)(7) and (8) related to the storage of RMW at such facilities.
  • To clarify certain permitting obligations imposed on facilities handling RMW that are registered with the Federal Select Agent Program (“FSAP”) or utilize biosafety protocols evaluated as part of FSAP Approval.  NYSDEC will use its enforcement discretion and will not require a permit for a facility that holds a FSAP registration or utilizes biosafety protocols approved as part of a FSAP at another laboratory at the same institutional campus; however, such facilities must register with NYSDEC in accordance with 6 NYCRR §365-2.3(b) and all wastes must be inactivated on-site and disposed of as RMW at a permitted RMW treatment facility.

The April 27, 2022 discretion letter provides enforcement discretion and clarification related to Construction and Demolition Debris and Fill Material.  Specifically, the April 27, 2022 letter provides:

  • The Department shall use enforcement discretion related to 6 NYCRR §360.12(c)(3)(viii), (ix), and (x) which provisions identify pre-determined beneficial uses (“BUDs”) to deal with reuse of recognizable, uncontaminated concrete and concrete products, asphalt pavement, brick, glass, soil and rock.  The Department will allow materials destined for and/or stored at these facilities, under the control of the generator or the person responsible for the generation, but prior to processing or reuse, to be managed as commercial product or raw materials. Similar discretion shall be issued to transporters of such material.
  • Department discretion as to the use of recycled aggregate from bricks, concrete pavement and/or asphalt pavement when used in or under asphalt pavement, or other paved surfaces, if separated from other waste prior to processing and subsequently processed and stored in a sperate area as a discrete material stream.
  • A stay of enforcement of sampling requirements contained in 6 NYCRR §361-5.4(e) which requires facilities to sample any fill material or residue leaving the facility for reuse.
  • Clarification as the definition of the term “similar material” that qualifies as Fill Material as that term is defined in 6 NYCRR §360.13.
  • Clarifies the handling and transporting requirements of mixed loads, indicating that facilities holding registration as a Solid Waste Management Facility, issued prior to November 4, 2017, may accept mixed loads of asphalt, asphalt millings, concrete, concrete products (including those embedded with reinforcement), masonry products, brick, rock and soil provided the facility’s registration allows for process of the component materials in the mixed load.  A special note indicated that de minimis amounts of wood present in a mixed load does not cause the material to be considered an unauthorized mixed load, or to be unrecognizable or contaminated.
  • Exception for use of recognizable, uncontaminated concrete products, asphalt pavement, brick and rock from construction and demolition activities may be used for grade adjustments if certain criteria are met.  The exception is not applicable in Nassau or Suffolk Counties or in the New York city Watershed.

According to a report published by the World Economic Forum, e-commerce sales ratios nearly tripled globally between 2014 and 2019.  In 2020, the COVID pandemic was a catalyst that accelerated this already rising trend by requiring traditional brick-and-mortar businesses to quickly shift to e-commerce.  As more and more consumers turn to e-commerce for their shopping needs, there is an expectation that the items purchased will arrive quickly.  The demand for faster deliveries has created the concept of last-mile delivery, which is the process of getting a purchased item from the warehouse shelf to the customer’s doorstep.

While drones, robots and autonomous cars are likely to play a role in the future of e-commerce deliveries, most e-commerce companies today rely on a fleet of transportation vehicles for last-mile delivery fulfillment.  Last-mile warehouses that rely on over-the-road deliveries generally require a greater number of parking spaces, not only for the delivery drivers and other employees of the facility, but also for the delivery vehicles that are stored on site. This has caused some municipalities to amend their zoning ordinances with respect to the number of on-site parking spaces required for warehouse and distribution facilities.

Until recently, the Town of Oyster Bay required that “warehouse, distribution and storage” uses provide one parking space for each employee, plus one space per commercial vehicle kept on the lot, but not less than one space per 1,000 sq. ft. of gross floor area.  However, following the Town’s approval of a 204,000 square foot Amazon warehouse delivery station with 1,603 parking spaces on the former Cerro Wire site in Syosset, the Town amended its parking regulations.

On June 14, 2022, the Oyster Bay Town Board voted to adopt Local Law No. 6 of 2022, which, among other things, revised the off-street parking and loading requirements for certain land uses, including warehouse, distribution and storage facilities.  The new parking requirement requires one parking space per employee, but no less than one parking space per 500 square feet of gross floor area, whichever is greater.  This new standard effectively doubles the number of parking spaces required for all new warehouses and distribution centers within the Town.

Critics of the new parking regulations argue that they penalize traditional warehouse and distribution uses that do not operate in the same way as last-mile warehouses and, therefore, do not need the same number of parking spaces in order to operate.  This point was made to the Oyster Bay Town Board at a May 11, 2022 public hearing by my Farrell Fritz colleague and fellow blogger, Philip Butler, who said:

“There is a difference between something like an e-commerce or last-mile warehouse and what I’ll refer to as traditional warehouse and storage uses.  This [proposed law] is a rising tide that is going to raise all ships, and that becomes problematic for traditional uses that do not operate at the same volume as an Amazon or last-mile warehouse.”

While there is certainly a rational basis for the new Oyster Bay parking regulations, the one-size-fits-all approach is problematic because not all warehouse and distribution facilities operate in the same way as an e-commerce warehouse of last-mile distribution facilities.  For traditional warehouse and distribution facilities that do not require a large number of parking spaces for their operations, compliance with the new parking regulations unjustifiably restricts the size of buildings.  This limits their functionality and may cause companies to operate elsewhere, which negatively impacts revenue to the Town and other local taxing jurisdictions.  Constructing and paving a parking lot that is larger than is actually needed, and installing the drainage infrastructure necessary to capture the storm water runoff from the lot’s additional impervious surfaces also increases construction costs.  Last, but not least, where additional parking is not actually needed, there is an environmental cost because areas that could be set aside for open space or additional landscaping must now be paved.

A better approach to addressing the parking challenges associated with the growing number of e-commerce warehouses and last-mile distribution uses is one similar to that used by the Institute of Transportation Engineers (ITE), which recognizes that there are different types of warehouses, and associates a different trip generation number with each.  Instead of lumping all types of warehouse uses together for purposes of calculating the number of parking spaces needed, municipalities should amend their codes to recognize the variety and intensity of operations of the different types of warehouse uses and assign a different parking requirement to each.  This will better ensure that each use will provide the number of parking spaces commensurate with the nature of its operations and no more pavement or other impervious surfaces than is necessary.

Zoning codes are constantly evolving in response to perceived or real threats of overdevelopment.  Generally, a municipality may in the reasonable exercise of its police power, amend its zoning code to be more restrictive in the bulk area requirements required for development of a parcel.  Known as a “merger provision” when a landowner purchases an adjacent substandard parcel of land, the lots merge with the existing property by operation of the local zoning ordinance.

The “single and separate” doctrine, however, may provide exemptions from subsequent more restrictive zoning ordinances.  Sometimes referred to as “checker boarding,” a landowner who owns property “single and separate” from another adjacent parcel may be able to preserve a developable lot despite a zoning code amendment prohibiting such development. But this is only if the municipality wants to extend such an exemption.

As stated by the Court of Appeals in Matter of Khan v Zoning Board of Appeals of Vil. of Irvington. 87 NY2d 344[1996], “there is no need for a common-law rule to protect landowners who possess parcels in ‘single and separate’ ownership situations,” and the Court of Appeals has declined to adopt such a rule.  The Court concluded that since the landowner’s property rights are protected by the availability of area variances, there is no need to overrule the municipality’s legislative zoning authority by creating a common-law right that automatically vests property owners with an exemption from area variances.

As a result, a municipality may provide this relief to exempt the owners of substandard parcels by creating a zoning exemption for properties that are held in single and separate ownership.  These exemptions are part of most zoning codes and serve an important purpose.  As  stated by the Court of Appeals in DeTroia v Schweitzer, 87 NY 2d 338 [1996], the purpose of a single and separate ownership exemption clause to a zoning code is to protect long-term property owners from amendments that render their previously conforming property useless, and thus preventing the more restrictive zoning ordinance from having a possible unconstitutional confiscatory effect.

Case law also clearly holds that commonly owned parcels will merge and not be considered “single and separate” for zoning purposes if: (1) they were used in conjunction with each other and (2) materially enhance the value and utility of each other.  Matter of Barretto v Zoning Board of Appeals of Inc. Vil. Bayville, 1234 AD2d 692 [2 Dept 1986].

This is why savvy property owners keep properties in separate ownership.